Why Some Conservatives Cheer a Court’s Bar of the Executive Order Against Perkins Coie

​A federal judge in Washington, D.C., has issued an injunction that bars the Trump administration from enforcing an executive order against the law firm Perkins Coie. The order had forbidden the more than 1,200 Perkins Coie lawyers from entering federal buildings or from holding national security clearances – crippling restrictions for many of these lawyers, their clients, and their ongoing cases.

The reason for the president’s anger at this firm is clear. A Perkins Coie attorney – who has long since left the law firm – was involved in the pass-through for Clinton campaign funds in 2016 connected to the Steele dossier, since discredited by the Justice Department Inspector General.

But the sweeping action against the firm’s many lawyers and their clients is seen by most of the legal community as overreach.

Conservative legal writer Andrew McCarthy wrote in National Review that this order is “a brazenly unconstitutional attempt to put the law firm out of business – or, just as likely, to extort tens of millions of dollars in legal services from it, as the president has succeeded in doing with several similarly targeted law firms, which decided to settle rather than continue to fight while hemorrhaging clients and employees.”

Now federal Judge Beryl Howell’s 102-page opinion provides a stinging rebuke to the administration. Judge Howell’s opinion begins on a puckish note, quoting Shakespeare’s Henry VI, “the first thing we do, let’s kill all the lawyers.” Judge Howell found:

“The Supreme Court has long made clear that ‘no official, high or petty, can prescribe what shall be orthodox in politics … or other matters of opinion’ … Simply put, government officials ‘cannot … use the power of the State to punish or suppress disfavored expression.’

“That, however, is exactly what is happening here.”

(Hat tip for the above to Eugene Volokh, PT1st Senior Legal Advisor).

In finding the executive order unconstitutional, Judge Howell quoted the Supreme Court’s opinion in National Rifle Association v. Vullo, in which the Court unanimously stopped an attempt by a progressive political appointee in New York State to stifle the speech rights of the NRA.
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McCarthy and other conservative legal observers point out that the same neutral principles that protect left-leaning law firms also protect the NRA or the many conservative publications targeted with advertising blacklists by a secret State Department program. Volokh expects this case to be promptly appealed to the D.C. Court of Appeals. It will be interesting to see if the administration, in fact, does file an appeal.

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